Sept. 2003 — Q: My company is forcing its employees to take 6 days vacation in order to affect the bottom line. Many employees must take the time without pay because they do not have enough vacation hours accrued. Did the company break its contract with the salaried employees and revert them to hourly ones? If so, are the employees entitled to be compensation for overtime since their date of hire?— Tres H., Columbus, Ohio
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A: When looking for answers to legal questions, we usually turn to the lawyers. Unfortunately, that means the answer isn’t simple, but this one may help you to get paid after all.
First off, is the “contract” you refer to a personal services contract? A collective bargaining agreement? If so, you need to check and see if the issue of involuntary, unpaid “vacation” is covered under those agreements.
If not, the question of whether you’re an hourly or salaried worker really doesn’t apply, according James Katz, a Philadelphia labor lawyer. And neither you nor your employer are free to designate you arbitrarily as an hourly worker, and thus eligible for overtime. That status, says Katz, is determined by the Fair Labor Standards Act and depends on a host of job characteristics, including how much you make, your level of skill or education and how closely you are supervised by a manager.
There may also be state laws that apply to the issue of involuntarily, unpaid “vacation.” (We made several calls to the Ohio Dept. of Labor but were unable to get an answer.)
But if you want to get paid for your “vacation,” Katz suggests you try filing for unemployment insurance.
“You can call it what you want,” he said, “but it’s really a layoff.”
You may be ineligible for payment if the waiting period is longer than a week. But it’s worth a try: If your claim is accepted, your employer will have to kick in to cover part of the cost of your claim.
And if you’re successful, it might discourage the company from pulling this stunt again, said Katz.
“If an employer decides to shut down a plant to save money, they may think twice about it if it’s going to increase their unemployment insurance costs,” he said.
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